UNITED STATES v. DONATO

On February 26, 1966, shortly after nine o'clock P.M., in the United States Mint, 16th and Spring Garden Streets, Philadelphia, there was a loud noise which sounded like an explosion. Upon investigation, Sergeant Galati of the Mint security guards found evidence that a firecracker or other explosive had been exploded (N.T. 34). He reported this to his superior, Captain Carr, who then himself examined the evidence (N.T. 12). Captain Carr determined to search all Mint employee lockers in order to find any additional fireworks or explosives which might be hidden in them (N.T. 12). During the course of this search, he opened defendant Donato's locker and found, under defendant's hat, a cloth bag which appeared to contain quarters (N.T. 10, 35). He replaced the bag in the locker, upon which he placed a padlock, and had the defendant summoned to the Mint security guard office (N.T. 10, 22). Defendant was held in the guard office until Secret Service Agent Wagner arrived to question him. After carefully warning him of his right to remain silent and his right to counsel, Agent Wagner asked the defendant some questions and then accompanied him to the employee locker room (N.T. 45, 47-48). When the padlock on his locker was removed, defendant opened the locker, lifted up his hat, and handed Agent Wagner the cloth bag which was subsequently found to contain 192 quarters (N.T. 48, 49). Defendant then informed the agent that he had some quarters in his jacket pockets (N.T. 48). The jacket was found to contain 90 quarters, which were also given to Agent Wagner (N.T. 54). On returning to the guard office, defendant gave Agent Wagner a statement which was suppressed as evidence at the trial out of an abundance of caution (N.T. 49, 73).

After a trial before the undersigned, sitting without a jury, the defendant was found guilty of embezzlement under 18 U.S.C. § 332 (Document 6, p. 125). Defendant has filed a motion for judgment of acquittal, alleging, first, that the evidence is insufficient to make out the crime of embezzlement and, second, that the court erred in refusing to suppress the coins found in his locker.

The only reasonable inference permitted by the evidence is that the defendant took these quarters from his working area and placed them in his locker so that he could later remove them from the building. Thus, the evidence supports a finding that all of the elements of the crime of embezzlement of metals are present. See 18 U.S.C. § 332; Moore v. United States, 160 U.S. 268, 269, 16 S. Ct. 294, 40 L. Ed. 422 (1895). The cases holding that possession of stolen goods permits an inference that such goods were unlawfully acquired by the possessor are pertinent. See United States v. Lefkowitz, 284 F.2d 310, 313 (2nd Cir. 1960); United States v. Allegrucci, 258 F.2d 70 (3rd Cir. 1958).

Most of the cases cited by defendant merely affirm the general proposition that Government ownership is a necessary element of the crime of embezzlement from the Government. They are not apposite to the issue presented here, which is whether the Government has shown Government ownership and entrusting to defendant. Although in Schell v. United States, 261 F. 593 (8th Cir. 1919), there was evidence of a coin shortage, the opinion of the court does not indicate that evidence of a shortage is a prerequisite to a finding of guilt in embezzlement cases. Naftzger v. United States, 200 F. 494 (8th Cir. 1919), is distinguishable from the instant case in that it involved a prosecution for receiving stamps stolen from the United States. The evidence in that case showed only that the defendant had purchased the stamps from one Burt under circumstances which indicated that they had been stolen. The court held that there could be no presumption that the stamps had been stolen from the United States, rather than from someone who had bought them from the Government. 200 F. at 498. Here the circumstances surrounding the finding of the coins permit only one reasonable inference as indicated above.

2. Defendant's motion to suppress the coins was properly denied.

The locker in which the coins were found was the property of the United States Government. It had been assigned to defendant for his exclusive
*fn1"
use subject to a valid Government regulation which provides: "No mint lockers in mint institutions shall be considered to be private lockers"
*fn2"
(N.T. 19). All employee lockers were subject to inspection, and were regularly inspected by the Mint security guards for sanitation purposes (N.T. 14, 19). The Mint security guards had a master key which opened all the employee lockers (N.T. 14, 37). It makes no difference that there was no specific evidence that defendant had personal knowledge of the above regulation or of the master key, because he could have acquired no greater right of privacy in the Government-owned locker than he was given by the Government.
*fn3"
The instant case is analogous to United States v. Grisby, 335 F.2d 652 (4th Cir. 1964), where a search without a warrant of a Marine Corporal's living quarters on Parris Island was upheld because a military regulation permitted such a search on the authorization of a commanding officer. In so ruling, the court considered the importance to the military of maintaining order and discipline. 335 F.2d at 654. In the present case there is a Government regulation
*fn4"
which permits the Mint security guards to inspect any and all Mint employee lockers whenever necessary (N.T. 19). Captain Carr searched the lockers in order to find any additional fireworks which may have been hidden there (N.T. 12). The search of the lockers was justified in order to maintain the order and security of the Mint. See, also, Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946); United States v. Crowley, 9 F.2d 927 (N.D.Ga.1922).

Defendant's argument that the right of the Mint security guards, if any, to inspect the employee lockers was limited and did not include authority to search for firecrackers under the circumstances here presented is rejected. The Government regulation referred to above does not indicate any limitation on the power of security officers to inspect Mint lockers; inspections apparently may be made whenever necessary for any reason. In any event, no reason appears why a search for fireworks or explosives, which could disrupt the orderly functioning of the Mint, is less justified than an inspection for sanitary purposes.

An appropriate order will be entered at the time ...

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